Names of

witnesses to

And in a British Columbia Case where the grand jury reported that without the evidence of an absent witness they had no materials to find a bill, Crease, J., held that they were entitled to peruse the depositions without proof that the witness was absent from Canada or was too ill to travel. R. v. Howes (1886), 1 B.C.R. pt. 2, p. 307.

And in R. v. Gerrans (1876), 13 Cox C.C. 158, Denman, J., presiding at the Hampshire Assizes, held, upon an application made on the part of the prosecution to send up the deposition of an absent witness to the grand jury, that the grand jury were entitled to look at and to act upon the deposition if they thought proper, without any preliminary proof that the witness was ill or that the deposition had been regularly taken in conformity with 11-12 Vict. (Imp.) ch. 42, sec. 17.

But in a Quebec Case the opposite view was taken. In Regina v. Carbray (1887), 13 Quebec Law Reports, p. 100, it was held by Sir A. A. Dorion, C.J., presiding at a trial sittings of the Court of Queen's Bench, Crown Side, that affidavits taken before a magistrate on the application for the warrant to apprehend the accused, could not be used as evidence before the grand jury in the absence of the deponents. The Chief Justice stated that the depositions were not admissible, having been taken out of the presence of the person accused, and without his having had an opportunity of cross-examining the deponents. He, therefore, declined to follow the decision in R. v. Bullard, 12 Cox 353.

Secrecy of proceedings of grand juries.]—By a rule of the common law, grand jurors are required to take an oath of secrecy, and it is well settled that the proceedings before the grand jury must be kept strictly secret, and that no information must be given pending their deliberation concerning the matters brought before them. Freeman v. Arkell, 1 C. & P. 135; Greenleaf on Evidence, 16th ed., sec. 252. The rule applies to all persons authorized by law to be present in the grand jury room. 17 Am. & Eng. Encyc., 2nd ed., page 1291.

It has been held that although the presence of a stranger in the jury room is improper, it does not invalidate an indictment found by the grand jury if he does not act as a grand juror, or if the person indicted is not thereby injured in his substantial rights; but if an unauthorized person participates in the proceedings of the grand jury, and instructs the grand jury concerning the law of the case, the indictment will be quashed. 17 American and English Encyclopædia of Law, 2nd ed., page 1292.

The defendant has no right to have a counsel or attorney, or any person skilled in the law, present before the grand jury as an advocate on his behalf, it being a preliminary investigation only, and not conclusive on him.

Chitty (1 Crim. Law, page 317), says: "Any person who may be present on the occasion is bound not to disclose what may transpire; and the jurors themselves are, by the terms of their oath, laid under the same obligation; and if they transgress it, they are fineable. Formerly, indeed, they became accessories to the offence if felony, and if treason, principals. And, at this day, it is, in general, a high misprision. But where a witness, examined on the trial, swears directly the reverse of the evidence given before the grand jury, they are at liberty to state this circumstance to the judge, who may direct him to be prosecuted for perjury on the testimony of the grand inquest. And it has been held that the true object of the secrecy required, is to prevent the evidence produced before the grand jury from being counteracted by subornation of perjury on the part of the defendant.

877. The name of every witness intended to be examined on any bill of indictment shall be submitted to the grand jury

by the officer prosecuting on behalf of the Crown, and no others be submitted shall be examined by or before such grand jury unless upon the to grand jury. written order of the presiding judge. 55-56 V., c. 29, s. 646.

witnesses.

878. Nothing in this Act shall affect any fees by law pay- Fees for able to any officer of any court for swearing witnesses, but such swearing fees shall be payable as if the witnesses had been sworn in open court. 55-56 V., c. 29, s. 647.

Proceedings when Person Indicted at Large.

879. When any one against whom an indictment has been Bench duly preferred and has been found, and who is then at large, warrant. does not appear to plead to such indictment, whether he is under recognizances to appear or not, the court before which the accused ought to have been tried may issue a warrant for his apprehension, which may be executed in any part of Canada.

being found.

2. The officer of the court at which said indictment is found, Certificate of indictment or, if the place of trial has been changed, the officer of the court before which the trial is to take place, shall, at any time after the time at which the accused ought to have appeared and pleaded, grant to the prosecutor, upon application made on his behalf and upon payment of twenty cents, a certificate of such indictment having been found which may be in form 65, or to the like effect. 55-56 V., c. 29, s. 648.

Bench warrant.]-A bench warrant directed to a sheriff and to all constables, etc., requiring them to arrest a man and bring him before the court to find securities for his appearance, was signed by the clerk of the peace, but had no seal. It was tested in open sessions at the court house, and was delivered by the clerk of the peace in court to the sheriff, who handed it to his deputy. It was held that the want of a seal did not make the warrant invalid. Fraser v. Dixon (1848), 5 U.C.Q.B. 231.

certificate.

880. Upon production of such certificate to any justice for Warrant by the county or place in which the indictment was found, or in justice on which the accused is or resides or is suspected to be or reside, such justice shall issue his warrant to apprehend him, and to cause him to be brought before such justice, or before any other justice for the same county or place, to be dealt with according to law.

2. The warrant may be in the form 66, or to the like effect. Form 55-56 V., c. 29, s. 648.

881. If it is proved upon oath before such justice that any Committal one apprehended and brought before him on such warrant is the of accused

to bail.

or admission person charged and named in such indictment, such justice shall, without further inquiry or examination, either commit him to prison by a warrant which may be in form 67, or to the like effect, or admit him to bail as provided in other cases: Provided that if it appears that the accused has without reasonable excuse broken his recognizance to appear he shall not in any case be bailable as of right. 55-56 V., c. 29, s. 648.

Proviso.

Warrant

882. If it is proved before the justice upon oath that any when accused such accused person is at the time of such application and in gaol. production of the said certificate as aforesaid confined in any prison for any other offence than that charged in the said indictment, such justice shall issue his warrant directed to the warden or gaoler of the prison in which such person is then confined as aforesaid, commanding him to detain him in his custody until by lawful authority he is removed therefrom.

Form.

Order for removal of prisoner to place of

trial.

Change of

venue.

Order.

2. Such warrant may be in form 68, or to the like effect. 55-56 V., c. 29, s. 648.

Place of Trial.

883. If after removal by the Governor in Council or the lieutenant governor in council of any province of any person confined in any gaol to any other place for safe keeping or to any other gaol, a true bill for any indictable offence is returned by any grand jury of the county or district from which any such person is removed against any such person, the court into which such true bill is returned may make an order for the removal of such person from the place for safe keeping or gaol in which he is then confined to the gaol of the county or district in which such court is sitting for the purpose of his being tried in such county or district. 55-56 V., c. 29, s. 650.

884. Whenever it appears to the satisfaction of the court or judge hereinafter mentioned, that it is expedient to the ends of justice that the trial of any person charged with an indictable offence should be held in some district, county or place other than that in which the offence is supposed to have been committed, or would otherwise be triable, the court before which such person is or is liable to be indicted may, at any term or sitting thereof, and any judge who might hold or sit in such court may, at any other time, either before or after the presentation of a bill of indictment, order that the trial shall

be proceeded with in some other district, county or place within the same province, named by the court or judge in such order.

2. Such order shall be made upon such conditions as to the Conditions payment of any additional expense thereby caused to to the as to exaccused as the court or judge thinks proper to prescribe. 55-56 V., c. 29, s. 651.

Changing place of trial.]-To effect a change of venue, or, more correctly, to change the place of trial, the court must be specially moved for the purpose. It does not rest with the Crown to select the place for trial by suggestion or otherwise, as it may desire. And the court will refuse or grant the motion as it may see fit. But it will be granted when there is a reasonable probability that a fair and impartial trial cannot be had in the place where the cause would otherwise be tried. Per Sir Adam Wilson, Č.J., in R. v. Carroll (1880), (the Biddulph murder case), cited in 2 Can. Cr. Cas. at p. 200.

The power to change the venue is partly discretionary and should be used with great caution. R. v. Russell (1878), Ramsay's Cases (Que.) 199; Ex parte Corwin, 24 L.C.J. 104.

Where the application was made on the part of the accused it was held sufficient to justify the change, that persons might be called on the jury whose opinions might be tainted with prejudice and whom the prisoner could not challenge. Ibid.

Under sec. 887 which applies only to Quebec, and which is taken from 32-33 Vict., ch. 29, sec. 11, the power to change the venue appears not to be limited to a judge sitting in the district where the offence is alleged to have been committed. Ex p. Brydges (1874), 18 L.C. Jur. 141.

A change of venue should not be made in a criminal case whereby the trial would be transferred from the county in which the crime is alleged to have been committed, unless facts are proved, as distinguished from sworn opinions, plainly indicating that a fair and impartial trial cannot be had in that county. R. v. Ponton (No. 1) (1898), 2 Can. Cr. Cas. 192 (Ont.).

A change of venue should not be granted on the ground of popular sympathy with the prisoner and prejudice against the prosecution, where there is nothing to shew that the class of citizens from whom the jury would be drawn are likely to be prejudiced except by those feelings which arise from the nature of the offence and which are common in all counties. Ibid.

But a change of venue may be ordered under this section on the application of the Crown, where at an abortive trial, at which the jury disagreed, a hostile demonstration was made against the judge by a mob assembled in the streets during a short adjournment of the trial. R. v. Ponton (No. 2) (1899), 2 Can. Cr. Cas. 417.

The change is rendered "expedient to the ends of justice" because the conduct of the mob tended to bring the administration of justice into contempt, and because of its possible influence on a jury at the next trial; and this notwithstanding the sworn statements of every juror at the abortive trial that they were in no way intimidated or influenced by the mob demonstration, part of which took place within hearing of the jury during their deliberations. Ibid.

Affidavits from the jurors denying intimidation are properly admissible in evidence on a motion to change the venue where such intimidation is charged. R. v. Ponton (No. 2) (1899), 2 Can. Cr. Cas. 417.

pense.

Transmis

sion of record.

Order sufficient authority for removal of prisoner.

An order for change of the place of trial is not open to objection on the ground that it makes no provision for the additional expense to which the accused might be put by the change, if the judge making such order was not asked to make an order as to such additional expense, and if it was not shewn to such judge that additional expense would be occasioned. R. v. Coleman (1898), 2 Can. Cr. Cas. 523.

Where, after a committal for trial for an offence under the Criminal Code, an order is made changing the place of trial to another county, an indictment may be preferred in the latter county not only for the offence for which the accused was committed for trial, but for any other offence disclosed in the depositions taken before the committing justice. Ibid.

In order to obtain a change of venue in a prosecution for defamatory libel such facts must be shewn as will satisfy the court that a fair trial cannot be had at the present venue, and it is not sufficient that the applicant's solicitor swears to a belief that a fair trial is impossible there because of the prosecutor's interest in political affairs.

The fact that two abortive trials of the cause have already taken place at both of which the jury disagreed, is not of itself a ground for ordering a change of venue. R. v. Nicol (1900), 4 Can. Cr. Cas. 1 (B.C.).

A change of venue has been granted upon prisoner's solicitor's affidavit that from conversations he had had with the jurors, he was convinced of a strong prejudice against the prisoner. R. v. McEneaney, 14 Cox, 87; R. v. Walter, 14 Cox, 579.

A balance of convenience as regards the distance which the witnesses would have to travel is not alone a ground for changing the venue in a criminal case. R. v. O'Gorman (1907), 12 Can. Cr. Cas. 230 (Ont.). The principal ground for a change of venue under sec. 884 is a reasonable probability of partiality and prejudice in the locality from which the jury would be drawn if the venue were not changed. Ibid.

885. Forthwith upon such order being made by the court or judge, the indictment, if any has been found against the prisoner, and all inquisitions, informations, depositions, recognizances and other documents relating to the prosecution against him, shall be transmitted by the officer having the custody thereof to the proper officer of the court at the place where the trial is to be had, and all proceedings in the case shall be had, or, if previously commenced, shall be continued in such district, county or place, as if the case had arisen or the offence had been committed therein. 55-56 V., c. 29, s. 651.

Other charges.]-The accused may be tried for the offence charged, or for any other offence whatever, founded upon the same facts as disclosed in the depositions taken before the justice on which he was committed for trial although the venue has been changed to another county. Goodman v. The Queen, 3 O.R. 18; R. v. Coleman, 30 O.R. 93; R. v. Paterson, 26 O.R. 656.

886. The order of the court, or of the judge, made as aforesaid shall be a sufficient warrant, justification and authority, to all sheriffs, gaolers and peace officers, for the removal, disposal and reception of the prisoner, in conformity with the